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United States Department of Homeland Security, Immigration and Customs&nbsp;Enforcement&nbsp;(Agency) and American Federation of Government Employees, Local 222, National Council 118, Immigration and Customs Enforcement (Union)&nbsp;

MEMORANDUM

64 FLRA No.
174

FEDERAL LABOR
RELATIONS AUTHORITY

WASHINGTON,
D.C.

_____

UNITED STATES
DEPARTMENT OF HOMELAND SECURITY

IMMIGRATION AND
CUSTOMS ENFORCEMENT

(Agency)

and

AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 222

NATIONAL COUNCIL
118

IMMIGRATION AND
CUSTOMS ENFORCEMENT

(Union)

0-AR-4525

_____

ORDER DISMISSING
MOTION FOR RECONSIDERATION

June 24, 2010

_____

Before the
Authority: Carol Waller Pope, Chairman, and

Thomas M. Beck and Ernest DuBester, Members

I. Statement
of the Case

This matter is before the Authority on the Agency’s
response to an order directing the Agency to show cause why its motion for
reconsideration of an earlier dismissal order should not be dismissed as
untimely. For the reasons that follow, we dismiss the motion for
reconsideration.

II. Background

The Agency filed exceptions to an arbitration
award, and the Authority issued an order directing the Agency to show cause (July
10 Order) why its exceptions should not be dismissed as interlocutory. Order
to Show Cause (July 10, 2009). The July 10 Order stated that the Agency’s
response was due by July 24 and that the Agency’s failure to comply with the order
“may result in dismissal of the exceptions.” Id. at 3.

The Agency did not file a response until August
4, 2009 (August 4 Response). The Agency acknowledged that its response was
untimely but did not request a waiver of the expired time limit, as required by
§? ?2429.23 of the Authority’s Regulations.[1] Accordingly, on
September 30, 2009, the Authority dismissed the exceptions. See Order
Dismissing Exceptions (Sept. 30, 2009) (Dismissal Order) at 2.

Although any motion for reconsideration of the
Dismissal Order was due by October 19, 2009, and the Agency conceded that it
received the Dismissal Order on October 16, the Agency did not file its motion
for reconsideration until October 26.[2] Unlike the August 4
Response, the Agency’s motion for reconsideration included a request for waiver
of the expired time limit; however, the Agency did not provide the Union’s
position on the waiver request, as required by § 2429.23(b).

On March 10, 2010, the Authority denied the
Agency’s request for a waiver of the expired time limit because the Agency had
failed to state the Union’s position on the waiver request. Order to Show
Cause (March 10 Order) at 2. The March 10 Order also directed the Agency to show
cause why its motion for reconsideration should not be dismissed as untimely.

In response to the March 10 Order, the Agency
argues that the Authority failed to serve the Dismissal Order by fax, and that
this precluded the Agency from timely requesting reconsideration.[3]See Resp. to March 10 Order at 1. The Agency states that the Union “has
confirmed” that it would not have agreed to a time-limit waiver for the motion
for reconsideration. See id. at 3 n.3. Moreover, the Agency requests
that the Authority consider the motion and the Agency’s previous filings,
without regard to any time limits for filing, under §? ?2429.26(a), which provides
that the Authority may grant leave to file “other documents” as appropriate.[4]See id. at 1 n.1, 4. Finally, the Agency questions whether, by denying
its request to waive the expired deadline for reconsideration of the Dismissal
Order, the Authority has “prejudged” the Agency’s response to the March 10
Order. See id. at 3 n.2.

III. Analysis and Conclusions

The Authority does not entertain relitigation of
matters that were already decided in earlier proceedings. See NTEU,
Chapter 207, 29 FLRA 1465, 1467-68 (1987) (order denying request for
reconsideration) (Chairman Calhoun dissenting) (declining agency requests to
“reopen[] and reexamin[e]” earlier decisions regarding compelling need and
negotiability); cf. U.S. DOD, Def. Logistics Agency, Def. Distrib. Region, W. Stockton,
Cal., 48 FLRA 543, 544-45 (1993) (order denying request for
reconsideration); N.Y. State Nurses Ass’n, 34 FLRA 805, 808 (1990) (same).
The March 10 Order denied the Agency’s request for a time-limit waiver for its
reconsideration motion because the request failed to state the Union’s position
regarding the request, as §? ?2429.23(b) expressly requires. See March
10 Order at 2; see also 5 C.F.R. § 2429.23(c) (Authority “may
not” grant waiver requests that do not meet requirements of § 2429.23); Resp.
to March 10 Order at 3 n.3 (conceding that waiver request did not state Union’s
position). In addition, even if the Agency had stated the Union’s position on
the waiver request, the Agency failed to explain why it did not timely file its
reconsideration motion, given its concession that, despite the Authority’s
inadvertent failure to serve the Agency’s representative with the Dismissal
Order by fax, the Agency received the Dismissal Order prior to the deadline for
requesting reconsideration.[5]See Mot. for
Recons. at 3 & n.2; see also supra note 2.

The Agency asserts that the March 10 Order’s
denial of its waiver request was an inappropriate “prejudg[ment]” of the issue
because, according to the Agency, the “essence of the Show Cause Order” was a
request for the Agency’s arguments on whether a waiver should be granted. Resp.
to March 10 Order at 3 n.2. However, the Agency could have responded
to the March 10 Order by, for example, demonstrating that the Agency had, in
fact, timely filed its reconsideration motion. See, e.g., Haw. Fed.
Employees Metal Trades Council, 57 FLRA 450, 452 (2001) (responding to
show-cause order, agency produced certified mail receipts and affidavit,
establishing timely date of service that differed from apparently untimely metered
postmark on envelope in which filing was served). Thus, although the March 10
Order disposed of the request for a time-limit waiver under §? ?2429.23,
it did not “prejudge” the issue of whether the Agency could demonstrate the
timely filing of its motion for reconsideration in some other manner.

For the foregoing reasons, the Agency provides
no basis to reverse the decision in the March 10 Order not to grant a
time-limit waiver for the motion for reconsideration.[6]

With regard to the Agency’s reliance on §? ?2429.26(a)
of the Authority’s Regulations,[7] as stated previously, that
regulation provides that the Authority may, in its discretion, grant leave to
file “other documents” as deemed appropriate. E.g., Cong.
Research Employees Ass’n, IFPTE, Local 75, 59 FLRA 994, 999 (2004). Under
that regulation, the filing party must demonstrate why its submission should be
considered. NTEU, Chapter 98, 60 FLRA 448, 448 n.2 (2004). However, both
the wording of §? ?2429.26(a) and the aforementioned decisions indicate
that this provision permits parties to file other documents, and not any
documents. Put simply, §? ?2429.26 applies only to documents other than recognized
filings; it does not apply in lieu of the requirements for those recognized
filings. In this regard, if the Agency were correct, then a party that failed
to comply with an applicable time limit in the Authority’s Regulations could
simply request a “document review” of the untimely filing under §? ?2429.26(a).
This approach would render meaningless the Authority’s filing deadlines.

For the foregoing reasons, the
Agency’s response to the March 10 Order does not provide a basis for
considering its untimely motion for reconsideration, and we dismiss that
motion.

(b) . . . [T]he Authority . . . may
waive any expired time limit . . . in extraordinary circumstances. Request for
a waiver of time limits shall state the position of the other parties
and shall be served on the other parties.

(c) The time limits . . . may
not be extended or waived in any manner other than that described in this
[section].

5 C.F.R. §? ?2429.23 (emphases added).

[2] Although the Agency
conceded that it received the Dismissal Order on October 16, it asserted that
its representative did not receive the Order until October 23. Mot. for
Recons. at 3 & n.2. However, the Agency offered no explanation for the
delay between the Agency’s receipt and the representative’s receipt. Moreover,
delays resulting from internal mail procedures or errors do not establish
extraordinary circumstances for waiving time limits. Cf.NTEU,
64 FLRA 833, 835 (2010). Finally, we note that, pursuant to a standing request
from the Agency, the Authority faxed all Authority orders and other
case-related documents, including the Dismissal Order, to the Agency’s Chief
Human Capital Officer on the same day that the Authority mailed them to the
Agency’s representative. See, e.g., Statement of Service for Dismissal
Order (Sept. 30, 2009) at 2.

[3] The Agency also argues
that the Authority miscalculated the reconsideration deadline; according to the
Agency, the correct deadline was October 15 (fifteen days after September 30
Dismissal Order). See Resp. to March 10 Order at 2. The Agency is
incorrect because the ten-day reconsideration deadline and the five-day mail-service
extension, which applies because the Authority served the Dismissal Order by
mail, see 5 C.F.R. § 2429.22, are computed separately,
and, if either period would expire on a Saturday, Sunday, or a federal
legal holiday, then the period is deemed not to expire until the end of the
next workday. 5 C.F.R. § 2429.21(a); see U.S. Dep’t of
Justice, Bureau of Prisons, Metro. Corr. Ctr., N.Y, N.Y.,25 FLRA
102, 103 (1986). As applied here, the due date for reconsideration was
October 19, 2009.

[4] We note that the Agency
also relied on § 2429.26(a) in its August 4 Response and its motion for
reconsideration.

[5] As noted previously, supra
note 2, although the Authority did not fax the Dismissal Order to the Agency’s
representative, the Authority did fax it to the Agency’s Chief Human Capital
Officer on the same day that the Authority mailed it to the Agency’s
representative. See Statement of Service for Dismissal Order (Sept. 30,
2009) at 2.

[6] As set forth above, we
note that even if the Agency had properly requested and received a
time-limit waiver for its motion for reconsideration, and the Authority
re-examined the Agency’s August 4 Response to the July 10 Order, the fact
remains that the August 4 Response was itself untimely and did not
include a request for time-limit waiver, as required by §? ?2429.23.

[7] As the Agency has raised
§ 2429.26(a) in several of its filings, and the Authority previously has not
addressed the Agency’s reliance on that regulation, we find it appropriate to
do so here.